Appeals court sides with judge who blocked deportations under wartime authority

A three-judge panel from the D.C. Circuit Court of Appeals has denied the White House’s push to restart deportations under a rarely used wartime authority.

By a vote of 2 to 1, the judges on Wednesday left in place a lower court order that temporarily blocked the Trump administration from quickly deporting alleged Venezuelan gang members under the Alien Enemies Act of 1798.

The White House said it plans to appeal to the Supreme Court.

Judge Patricia Millett, who was appointed by former President Barack Obama, cited a lack of opportunity for the alleged gang members to contest the cases against them before being quickly removed from the country.

“The government’s removal scheme denies Plaintiffs even a gossamer thread of due process,” Millett wrote in a concurring statement. “No notice, no hearing, no opportunity—zero process—to show that they are not members of the gang, to contest their eligibility for removal under the law, or to invoke legal protections against being sent to a place where it appears likely they will be tortured and their lives endangered.”

The ruling upholds a temporary restraining order from District Court Judge James Boasberg, who blocked the Trump administration on March 15 from removing immigrants under the act.

Lawyers for the Department of Justice argued that Boasberg had overstepped his authority by inserting himself into questions of foreign policy.

Argument of “irreparable harm”

Judge Justin Walker, who was appointed by President Trump in his first term, agreed with that argument.

“The Government likely faces irreparable harm to ongoing, highly sensitive international diplomacy and national-security operations” if the lower court order is allowed to stay in place, Walker wrote in his dissent.

“The Government is likely to succeed on appeal for a technical, but important, reason,” Walker wrote: the five named plaintiffs in the case should have filed their challenges in Texas, where they were being held, rather than in Washington, D.C.

The third judge, Karen Henderson, said little during oral arguments earlier this week. But Henderson, who was appointed by former President George H.W. Bush, voted to keep the lower court order in place. And she rejected the government’s argument that the court could not consider questions of foreign policy or national security.

“Sensitive subject matter alone does not shroud a law from the judicial eye,” Henderson wrote. “Indeed, we have previously considered the precise sort of question that the government contends we cannot.”

The ACLU and Democracy Forward, which sued to block the Trump administration from using the Alien Enemies Act, hailed the appeal’s court order.

“President Trump is bound by the laws of this nation, and those laws do not permit him to use wartime powers when the United States is not at war and has not been invaded to remove individuals from the country with no process at all,” said Skye Perryman, president and CEO of Democracy Forward, said in a statement.

The White House criticized the ruling, saying President Trump was seeking to protect the American people from members of a foreign terrorist organization — which it had designated Tren de Aragua.

“The D.C. Circuit Court of Appeals’ failure to stay the radical decision of the District Court should shock the conscience of the American people, and constitutes a capitulation to the ongoing, unauthorized infringement on the President’s authority to protect the American people” and remove Tren de Aragua members, Harrison Fields, a White spokesman, said in a statement. He said the Trump administration would “swiftly” seek Supreme Court review.

—NPR’s Ryan Lucas contributed to this story.